A peace activist has lost a High Court challenge to the Government's decision to open the State's airports and airspace to aircraft involved in military action in Afghanistan.
While rejecting the argument of Eoin Dubsky that the activities in Afghanistan involve a "war" within the meaning of the relevant Article of the Constitution, Ms Justice Fidelma Macken said some people might consider it hypocritical for the State to proclaim neutrality while engaged in actions which, on the principles of law opened to the court, might invoke the loss of neutral status.
Mr Dubsky had sought a declaration that allowing military aircraft to overfly or land here, or the giving of other assistance to states involved in military action in Afghanistan, was in breach of the Constitution.
Yesterday Ms Justice Macken held that Mr Dubsky had not satisfied her that the events occurring in Afghanistan constituted "a war" for the purposes of Article 28.3.1 of the Constitution.
The judge noted that Article 28.3.1 required a resolution of the Dáil before the State could participate in any war. There was no requirement of a resolution in the absence of war or in the absence of participation in a war.
She said Mr Dubsky had not established within the context of Article 28.3.1 that the opening of facilities to aircraft constituted "participation".
The proceedings were instituted in late 2002 by Mr Dubsky, of Whitewalls, Ballymoney, Co Wexford, and were brought against the Government, Minister for Foreign Affairs, Minister for Transport and the State, which opposed the application.
Mr Dubsky had asked the court to quash the Government's decision opening the State's airports and airspace to aircraft involved in military action in Afghanistan in pursuance of UN Security Council Resolution 1368.
He said he believed the actions being facilitated by the respondents caused significant death and injury to civilians in Afghanistan, and went beyond the mandate, if any, purportedly afforded by the UN resolution.
It was a matter of unmost public interest for significant participation in armed conflict to be subject to the approval of the Dáil.